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BY Michael Barbera
WASHINGTON-The U.S. Senate followed the lead of the House in mid-September when it passed the Defense of Marriage Act (DOMA), legislation which would allow states to outlaw same-sex marriages. Hours later, the Senate also debated a related amendment which would have made sexual preference a protected minority class and therefore subject to federal anti-discrimination laws.
DOMA passed the Senate on an overwhelming 85 to 14 vote and will soon be sent to the White House, where President Clinton is waiting to sign it. The President indicated his support for the legislation earlier this summer, when the bill was first considered by the House. DOMA passed the House on July 12, by a runaway 342 to 67 margin.
L'Osservatore Romano, a newspaper that often reflects Vatican thinking, hailed the passage of DOMA, saying it was a common-sense rejection of same-sex unions. ASept. 12 editorial by moral theologian Father Gino Concetti praised the United States for showing more “strength and courage” than European countries in protecting the value of marriage and family. In passing the bill, Congress resisted pressures by homosexual groups, it said. The editorial noted that the Church makes a distinction between the “tendency” toward homosexuality and its “institutionalization.”
The issue of same-sex marriage became a legislative issue as a result of a court case in Hawaii. While many states have laws on the books outlawing same-sex marriages, court action in Hawaii threatens to render many of these laws unconstitutional. In May, 1993 a divided Hawaii Supreme Court ruled that denying marriage licenses to same-sex couples violated the state constitution's Equal Protection Clause and Equal Rights Amendment. The court held that the equal rights amendment amounted to a mandate to the state to issue marriage licenses to couples of the same sex, and remanded the case for trial to see if there is a compelling state interest in denying same-sex marriages. Most legal experts expect that the outcome of the trial will be consistent with the Hawaii Supreme Court's ruling, and that the state will soon have to grant marriage licenses to same-sex couples.
These actions in Hawaii could have far-reaching implications for the other 49 states. Article lV, section 1 of the U.S. Constitution provides that “full faith and credit shall be given in each state to the Public Acts, records, and judicial proceedings of every other state.” This means that every state in the union must honor same-sex marriages in Hawaii as legal in their own state. In effect, the “full faith and credit” clause of the U.S. Constitution would override any state laws outlawing homosexual marriages.
Currently, 15 states have laws on the books barring same-sex marriages, and similar measures are currently pending in two other states. In addition, Republican Govs. Kirk Fordice (Miss.) and Fob James (Ala.) have signed executive orders banning gay marriages in their states.
Both sides in the gay-marriage debate-gay rights groups on one hand and pro-family organizations on the other- noted that gay couples could simply travel to Hawaii, get married, and ex-pect their home state to legally recognize that union. Such a decision would have far-reaching implications for insurance coverage, state and federal benefits payments, adoption laws, and school curricula.
To address these matters, DOMA states that no state “shall be required to give effect” to a same-sex marriage license issued in another state. In the Full Faith and Credit Clause, however, Congress is given the right to regulate the “effect” of the clause. By passing DOMA, Congress is invoking its authority to utilize this “effects clause.” DOMA also defines marriage for the purposes of federal law as the legal union between one man and one woman, and a spouse as “a person of the opposite sex who is a husband or a wife.”
Supporters of the bill point out that the legislation does not prohibit states from recognizing same-sex marriages, it simply does not compel them to do so.
The Catholic bishops weighed in on the issue of same-sex marriages, although they did not comment specifically on DOMA. “The Roman Catholic Church believes that marriage is a faithful, exclusive, and lifelong union between one man and one woman, joined as husband and wife in an intimate partnership of life and love,” said the statement by the National Conference of Catholic Bishops. “We oppose attempts to grant legal status of marriage to a relationship between persons of the same sex. No same-sex union can realize the unique and full potential which the marital relationship expresses.”
Debate on the DOMA legislation in the Senate was more measured than the high-decibel discussion in the House two months before. Senate Majority Leader Trent Lot (R-Miss.) called the bill a “preemptive measure to make sure that a handful of judges in a single state cannot impose a radical social agenda on an entire nation.”
The vote margin on the Employment Non-Discrimination Act, however, was razor-thin. The bill was defeated 50-49, but the vote would have been tied had Sen. Daniel Pryor (D-Ark.) been able to vote. Pryor, who remained in Little Rock to be with his family while his son underwent cancer surgery, had committed to vote for the bill. Had the vote been a tie, Vice President Al Gore was prepared to cast the tie-breaking vote in favor of the measure. The President supports the discrimination bill, according to a statement which stressed his opposition to “discrimination against any group of Americans, including gay and lesbian individuals.”
Many pro-family groups opposed the bill because it would have singled out homosexuals as a protected class, along with minorities and women, for the purposes of anti-discrimination statutes. Sen. Nickels argued that this was tantamount to the federal government sanctioning homosexuality. Opponents of the bill stressed that it would give the federal government new powers over private business and would results in a new wave of crippling litigation.
“Many supporters [of the bill] equated homosexuality with being black or Hispanic,” said Gary Bauer, President of the Family Research Council, in a statement. “But minority groups that enjoy special protections do so because of group histories of political powerlessness, economic deprivation and unchangeable characteristics. Homosexuals do not qualify in any of these categories.”
The bill included exemptions for churches and synagogues, but not extend to other values-based organizations like religious broadcasters, religious publishing houses or bookstores, and daycare and summer camps for religious youth.
Pro-family groups were delighted with the double victory, even predicting that these issues could energize religious conservatives for the fall election campaign.
“This is a huge string of victories for the pro-family movement,” Ralph Reed, executive director of the Christian Coalition, said. “These are the bricks in the wall that allow you to build the turnout of religious conservatives.”
Michael Barbera is based in Washington, D.C.